(WOMENSENEWS)
In Guatemala, Rodi Alvarado
suffered ten years of beatings
and rapes at the hands of
her husband. After several
attempts to escape, and with
no shelters to run to, in
1995 she fled her home to
seek asylum in the United
States, leaving her two small
children in the care of a
relative. Since then, she
has been separated from her
children, waiting for the
U.S. Department of Justice
to decide if she may remain
in the United States. She
might have her answer soon--and
it may be no.

On March 1,
the U.S. Immigration and Naturalization
Service moved from the jurisdiction
of the Department of Justice
to the new Department of Homeland
Security. The new department
now has control over proposed
regulations that could have
allowed Alvarado, and other
women fleeing gender violence,
to seek refuge in the United
States. The Department of
Justice maintains control
over the immigration courts
and the Board of Immigration
Appeals, where Alvarado's
case resides. As the two departments
review gender asylum, Alvarado's
fate, and the fate of women
like her, remains in the balance.

Bush Administration
Stalled Proposed Protection

At least one
in three women and girls worldwide
has been beaten or sexually
abused in her lifetime--and
only 44 countries have laws
that specifically address
domestic violence, according
to data from the United Nations
Development Fund for Children.
When women are raped, beaten,
forcibly sterilized, sold
into slavery or threatened
with honor killing, and when
their government fails to
protect them, they can become
refugees out of desperation.

Under international
law, refugees seeking asylum
must prove they can't return
home because of a "well-founded"
fear of persecution due to
race, religion, nationality,
political opinion or membership
in a particular social group.
Though gender is not explicitly
included as a category, last
year the U.N. High Commissioner
for Refugees affirmed that
a gender-sensitive interpretation
should be applied to the refugee
convention. Britain, Australia,
New Zealand, Sweden, Ireland,
South Africa and Canada all
recognize gender-based asylum
claims. Before President Bush
took office, it looked as
though the United States would
join this list.

In the waning
days of the Clinton administration,
the immigration service proposed
regulations that recognize
that, under certain circumstances,
gender can be considered under
the social group category
in the refugee convention--and
domestic violence can be a
basis for asylum.

Those proposed
regulations saved--and stalled--Alvarado's
case. In 1996, an immigration
judge granted Alvarado asylum,
finding that the abuse she
suffered and the government's
inability to protect her constituted
persecution. But the immigration
service opposed the decision,
and Alvarado's case went before
the Board of Immigration Appeals,
a Justice Department panel
that reviews immigration cases.
The board ruled that Alvarado
was not eligible for asylum
and ordered that she be deported.
On her last day in office,
Attorney General Janet Reno
voided that ruling and instructed
the board to reconsider the
Alvarado case after the immigration
service finalized the proposed
regulations. One month later,
President Bush took office.
In the more than two years
since then, the Department
of Justice has failed to finalize
the gender asylum regulations.

Fate of Proposed
Regulations Uncertain

As the immigration
service's move to Homeland
Security loomed near, human
rights advocates feared that
the Justice Department would
issue final regulations that
would deny gender-based asylum
claims. Heidi Altman, a spokesperson
for the Lawyers Committee
for Human Rights, a Washington,
D.C.-based advocacy organization,
says a source within the Department
of Justice confirmed that
Ashcroft planned to issue
final regulations. As February
came to a close, the Department
of Justice refused to confirm
or deny those accounts.

As word of possible
action on the regulations
spread, 49 members of Congress
sent a letter to Attorney
General John Ashcroft urging
him to not issue regulations
that would reject gender-based
asylum claims.

"We are
deeply concerned that the
new regulations will reverse
current policy and make it
more difficult for anyone
who has been persecuted by
'non-state actors' to gain
asylum protection," the
letter states. "Furthermore,
your new proposed regulation
will condemn several women
and girls to death."

Since then,
the Department of Justice
has handed the proposed regulations
over to the Department of
Homeland Security and will
offer guidance on the matter,
says Jorge Martinez, a Justice
Department spokesperson. Together,
they are working on a final
rule "that would provide
a uniform set of standards
for adjudicating a broad range
of cases that are difficult
to interpret within the framework
of current asylum law,"
he says.

Meanwhile, Ashcroft
has referred Alvarado's case
to himself for review. He
plans to decide whether Alvarado
falls into the social group
category definition outlined
in asylum law and if she was
persecuted on the basis of
her membership in that social
group.

Karen Musalo,
co-counsel on the Alvarado
case and director of the Berkeley,
Calif.-based Center for Gender
and Refugee Studies, says
she has heard from people
within the Justice Department
that the Attorney General
intends to reinstate the original
Board of Immigration Appeals
decision, which denied Alvarado
asylum. If that happens, it
will run counter to the proposed
gender asylum regulations
and set a negative precedent
for other women fleeing domestic
violence.

"This would
be an incredible step backwards
and quite a repudiation of
our commitment to protecting
women who are fleeing violations
of their human rights,"
said Musalo.

The Department
of Justice said the Attorney
General has not made a decision
on the case and no deadline
has been set for that decision.

Rosalba Aguirre-Cervantes
spent her childhood surviving
frequent, severe beatings
from her father who used a
horsewhip, a hose, tree branches
and his fists. Her attempts
to run away resulted in more
abuse. In 1999, at age 16,
she fled her home in Mexico.
She arrived in Los Angeles
and spent the next two years
fighting to avoid deportation.

Her case made
its way to the Ninth Circuit
Court of Appeals. In 2001,
a three-judge panel ruled
that Cervantes should be able
to remain in the United States
because of her past suffering,
her fear of future abuse,
and the fact that Mexico was
"unable or unwilling
to interfere with that persecution."
Advocates celebrated the decision
as a precedent establishing
domestic violence as grounds
for asylum and as a firm footing
for other gender-based asylum
claims. But their elation
did not last. Later in the
year, the immigration service
sought, and won, a rehearing
before the full court. Before
that rehearing took place,
Cervantes' father was killed
and both parties agreed to
have the case remanded to
the Board of Immigration Appeals
without a decision, effectively
erasing the legal precedent.

In several cases
that reached the federal appeals
court level, the immigration
service withdrew its opposition
to asylum and the cases went
back to the Board of Immigration
Appeals. The board's decisions
in those cases were unpublished,
which means they do not set
precedent.

Absent positive
legal precedent, and facing
a possible negative decision
by Ashcroft in Rodi Alvarado's
case, women who come to the
United States seeking refuge
from domestic violence may
find closed doors.

"The majority
of people in the United States,
when confronted with the facts
of what these women face if
they are forced to return
home, respond 'How can we
send them back to that?'"
said Musalo.